The Legal Ethicist: Personal vs. Professional Ethics — How the Separation Created a Decline

by Ruchi Kapoor

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long time ago (OK, so it was the late 1800s) the legal profession in the United States closely resembled the Wild West. Not in the sense that lawyers wore cowboy boots and bolo ties with their suits to work (because, well, that still happens in Colorado) but in a larger, free-for-all, chaotic sense.

In other words, states were loosening up their licensing requirements (or had none at all), lawyers were entering the profession in droves, and those already established in the profession freaked out. So, a few very clever lawyers on the East Coast came up with a solution: the canons of ethical legal behavior (or the "let’s create a set of principles that apply only to lawyers working in a professional capacity, because the riff-raff that are joining the profession are threatening to tarnish its honor" plan 1). The very creation of legal ethics, then, stemmed from a more generalized anxiety over a decline in revenue and reputation.

Is this a cynical account of what happened? Probably. But you get the gist.

In 1908, the American Bar Association finally adopted the Canons of Ethics in response to debates in the 1860s over the role of attorneys in our modern democratic society and their responsibilities to their clients.

These canons, ostensibly named after the biblical ones and not the military variety, were developed to cement the moral and ethical role that an attorney might play as an "officer of the courts," as a citizen of the United States, and as an advocate for a client’s interests. Underlying the creation of the canons was an important rhetorical distinction that had entered the ethical debate a mere 50 years before: the difference between a duty to the system of justice to defend (or take on) all clients versus the right of a lawyer to choose who he or she represents.

Although the distinction seems small, it underscored an important point: whether an attorney had an ethical obligation to our system of justice or whether that ethical obligation was owed to a specific client. As the dust settled around this important question, the zeitgeist moved toward a preference for "zealous advocacy for the client" and never looked back. (I am sure there is a country or blues song lurking around here somewhere.)

The canons were not revisited again, despite lengthy criticism from both inside and outside the profession, until the late 1950s and early 1960s. As lawyers came back to revisit them, no one thought to question the underlying presumptions of zealous advocacy instead of advocacy that was premised on an ethical duty owed to the overall justice system. In addition, it was hard not to be blinded by the lucrative business of being an attorney — especially in a golden era when demand for legal services far outstripped supply.2

When the ABA first decided to revisit the canons and change them from being moral and ethical "thou-shall-not"-type statements, the business of being a lawyer was booming. Thus, this framing and re-fashioning of the canons into a Code of Professional Conduct allowed the drafters to add in several business issues that were cleverly framed as legal ethical issues. I imagine that this drafting took place in a "Mad Men"-style boardroom, involving lots of cigars, alcohol, and cackling about how it was time for lawyers to make more money than doctors.

What? The ’60s were an incredible time.

By 1972, when the ABA’s code of professional responsibility had already been adopted in 43 states, panic began to overtake the monetarily focused side of the profession. Indeed, there were a number of articles in national business magazines sounding the alarm about an oversupply of lawyers and a dangerous increase in instability in the legal market. This series of articles and widespread anxiety about oversupply began a movement to shift the focus of professional conduct away from the major "self-interestedness" resulting from the canons existing in the code adopted in the late ’60s and early ’70s.3 But it was already too late. The economics of law had been cemented into the code and contributed to the bifurcation of what later became known as "personal ethics" and "professional ethics" — a pernicious distinction.

Eventually, the ABA created the Model Rules of Professional Conduct. When I think about this process in the 1980s, I like to imagine a montage of images of frantic lawyers scurrying about while wearing white "Miami Vice" suits, sporting Tom Selleck-esque mustaches, set to a soundtrack by Duran Duran.

What? The ’80s were an incredible time.

Anyway, this new set of rules distanced itself from all of the previous sets of legal ethical rules — primarily by removing the nebulous concept of "personal ethics" altogether. Unsurprisingly, then "the Model Rules were more of a black-letter criminal law style code than had ever been proposed before, but at the same time they were written in language that softened the commands considerably, and made them subject to a rule of reason."4 In other words, lawyers were finally living in a risk-aversion nightmare of their own making: a law governing the profession that was devoid of an ethical or moral core, which was dictated by the bounds of a professional’s own "reasonableness."

Under the system we have going right now, we begin to rationalize actions taken at the behest of a client that may not have the best implications in our overall system of justice. Without decency as a fundamental building block, determining if a person is a professional becomes open to all sorts of dangerous interpretations. Whether a client has been given effective assistance of counsel, for example, has now become a question of whether the attorney’s conduct was reasonable or bat-poop insane.5

Ethical behavior can be defined, at its most basic, as behavior that promotes the health of a whole, rather than the benefits to an individual. Ethics are part of the glue that holds a group of people together in what is known as a "functional society." No, really. Ask Aristotle.

The moment that we began to separate our personal ethics (i.e. the moral imperative to be a good citizen) from professional ethics (i.e. the moral imperative to do only what is good for our clients in this particular case), we undermined the very system that awarded us credibility as professionals. This shift in how legal ethics are defined can probably be directly correlated with the rise of the really terrible lawyer joke (what I would give for a grad student to make this graph!) and the reputation of lawyers as a whole. D

1 For a better history of legal ethics, see Ariens, “American Legal Ethics in an Age of Anxiety,” 40 St. Mary’s L.J. 343 (2008).2 Id. at 421-422. In the 1940s the demand for legal services increased 86 percent, while supply increased 12 percent. In the 1950s, demand increased by 76 percent and supply by 35 percent.3 Id. at 444-448.4 Id. at 449.5 No, really, this was the standard set out in Strickland v. Washington, 446 U.S. 668 (1984). They didn’t exactly use the phrase “bat-poop insane,” but you get the impression the U.S. Supreme Court was considering using it as the technical legal term for the lowest standard of attorney competence needed to conduct a viable criminal defense in this country.

Ruchi Kapoor is an appellate attorney at heart who is currently clerking for the Denver Juvenile Court. "The Legal Ethicist" is a chronicle of her thoughts on ethical misadventures. To read more about her thoughts on misadventures in Bollywood, check out her blog at roopakihcur.wordpress.com.

Do you have a question you’d like the Legal Ethicist to weigh in on? Send your query to docket@denbar.org.